State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

I have received your letter of June 6 addressed to David Treacy of this office, as well as the materials attached to it. You have sought an opinion concerning the propriety of a denial of access to a "preliminary FEIS" by the Village of Briarcliff Manor.

In his response to your request, the attorney for the Village, Mr. Daniel Pozin, wrote that:

"As the lead agency’s document, we believe that all draft versions of the FEIS are intra-agency documents which are not subject to FOIL, as they do not yet represent final agency policy or determinations. Notwithstanding the fact that the FEIS is in large measure, being produced on behalf of the lead agency by the Applicant’s consultants, it remains subject to final review, comment and modification at the request of the lead agency and the lead agency’s consultants. As such, the documentation you have request is an incomplete, non-final working draft of a document upon which a decision will ultimately be made."

He added that:

"...the SEQRA regulations, which are promulgated pursuant to the Environmental Conservation Law of the State of New York provide a specific sequencing for preparation, distribution, and comment on an FEIS. While the SEQRA regulations do require that the document be ‘readily available for public inspection’ (NYCRR 617.10(h)), we note that such public inspection is accorded once the FEIS has been accepted as complete by the lead agency and a notice of completion has been issued."

In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

Second, although one of the grounds for denial may frequently be cited to withhold records characterized as "draft" or "preliminary", for example, that provision would not be applicable in a situation in which records are not prepared by an agency or a consultant retained by the agency. Specifically, §87(2)(g) deals with "inter-agency and intra-agency materials." Section 86(3) of the Freedom of Information Law defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Based on the foregoing, the exception pertains to communications between or among state or local government officials at two or more agencies ("inter-agency materials"), or communications between or among officials at one agency ("intra-agency materials"). Further, it has been held by the state’s highest court, the Court of Appeals, that records prepared by a consultant retained by an agency should be treated as though they were prepared by agency staff and that the records, therefore, constitute "intra-agency" materials [Xerox Corp. v. Town of Webster, 65 NY2d 131 (1985)].

It is unclear whether the preliminary FEIS has been prepared by a consultant retained by the Village or by or for the applicant. If it was prepared by or for the applicant and submitted to the Village, even in draft form, I do not believe that any of the grounds for denial would be applicable. In short, neither the applicant nor the applicant’s consultant would constitute an agency, and if the record in question was prepared by either, the exception regarding intra-agency materials would not apply.

Third, even if the preliminary FEIS was prepared by the Village or its consultant and may properly be characterized as "intra-agency" material, it is unlikely that the document could be withheld in its entirety. Due to the structure of the provision dealing with inter-agency and intra-agency materials, it is clear that the contents of those materials determine the extent to which they may be withheld, or conversely, must be disclosed. Section 87(2)(g) enables an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

I emphasize that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

In this vein, the Court of Appeals reiterated its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

If the record sought indeed consists of intra-agency material, that it is preliminary does not remove it from rights of access. One of the contentions offered by the agency in Gould was that certain reports could be withheld because they are not final and because they relate to matters for which no final determination had been made. The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][iii)]. However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." (id., 276).

In short, that a record is in draft or preliminary would not represent an end of an analysis of rights of access or an agency's obligation to review the entirety of its contents.

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)" (id., 276-277).

In sum, if the preliminary FEIS was prepared by the applicant or the applicant’s consultant, the exception regarding inter-agency or intra-agency materials, in my view, would not serve as a basis for a denial of access. If the document was prepared by the Village or its consultant, I believe that it would constitute intra-agency material, but that those portions consisting of statistical or factual information must be disclosed, despite the status of the document as "preliminary."

Lastly, with respect to the remaining contention offered by Mr. Pozin, that certain records subject to the SEQRA process are accessible only at certain times or in a particular sequence, I do not believe that there is any legal basis for such a conclusion. The regulations promulgated by the Department of Environmental Conservation to implement SEQRA specify that certain records must be available to the public at certain times, but I have located no provision stating that the records cannot be disclosed at other times. Based on judicial interpretations involving exceptions to rights of access in the state Freedom of Information Law, the record at issue would not be "specifically exempted from disclosure by...statute" pursuant to §87(2)(a). The Court of Appeals has determined that the characterization of records as "confidential" or "exempted from disclosure by statute" must be based on statutory language or legislative intent that clearly confers or requires confidentiality, stating that:

"Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection" [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

I am unaware of any statute that specifies that a preliminary FEIS is exempt from disclosure. Moreover, a statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not the equivalent of statutes for purposes of §87 (2)(a) [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ]. Therefore, insofar as an agency’s regulations render records or portions of records deniable in a manner inconsistent with the Freedom of Information Law or some other statute, those regulations would, in my opinion, be invalid. In short, a state agency’s regulations do not constitute a statute or statutes and would not serve to exempt records from disclosure.